Untitled Texas Attorney General Opinion ( 2017 )

KEN PAXTON
ATTORNEY GENERAL OF TEXAS
January 18, 2017
Mr. Rick Dollahan Opinion No. KP-0130
Gaines County Auditor
Post Office Box 84 7 Re: Whether a county attorney who is
Seminole, Texas 79360 appointed to serve as a special prosecutor may
be paid additional compensation (RQ-0120-KP)
Dear Mr. Dollahan:
You ask whether a county attorney who is appointed by a district attorney to serve as a
special prosecutor may be paid additional compensation. 1 You inform us that you received a letter
from the District Attorney for the 106th Judicial District directing payment of $500 to the Gaines
County Attorney for services rendered on July 1, 2016 as a "special prosecutor" representing the
State in various Gaines County district court proceedings. Request Letter at 1. You further state
that the district attorney, not the court, appointed the county attorney to serve as a special
prosecutor. Id. You inform us that the county attorney believes that he is not entitled to the
payment, but the district attorney disagrees. Id. at 2.
Article 2.02 of the Code of Criminal Procedure sets forth duties of a county attorney:
The county attorney shall attend the terms of court in his county
below the grade of district court, and shall represent the State in all
criminal cases under examination or prosecution in said county; and
in the absence of the district attorney he shall represent the State
alone and, when requested, shall aid the district attorney in the
prosecution of any case i~ behalf of the State in the district court.
TEX. CODE CRIM. PROC. art. 2.02. Article 2.02 imposes a duty on a county attorney to represent
the State in criminal cases in district court, whether alone when the district attorney is absent, or
in aid of the district attorney upon the district attorney's request. Id.; see also TEX. Gov'T CODE
§ 311.016(2) (stating the rule of statutory construction that the word "'shall' imposes a duty" unless
context-necessarily requires otherwise). However, a district or county attorney may not "take from
any person a fee, article of value, compensation, reward, or gift ... to prosecute a case that he is
required by law to prosecute." TEX. Gov'T CODE§ 41.004. Further, article III, section 53 of the
Constitution prohibits the payment of "any extra compensation, fee or allowance to a public
'See Letter from Mr. Rick Dollahan, Gaines Cty. Auditor, to Honorable Ken Paxton, Tex. Att'y Gen. at I
(July 2I,2016), https://www. texasattomeygeneral.gov/opinion/requests-for-opinion-rqs ("Request Letter").
Mr. Rick Dollahan - Page 2 (KP-0130)
officer, agent, servant or contractor, after service has been rendered." TEX. CONST. art. III, § 53.
Thus, because a county attorney has a duty under article 2.02 of the Code of Criminal Procedure
to represent the State in the district court of the county, the county attorney may not receive
additional compensation for doing so.
You reference article 2.07 of the Code of Criminal Procedure. Request Letter at 2. Article
2.07 authorizes a court to appoint an attorney pro tern "[w]henever an attorney for the state is
disqualified to act in any case or proceeding, is absent from the county or district, or is otherwise
unable to perform the duties of his office." TEX. CODE CRIM. PROC. art. 2.07(a). However, "ifthe
appointed attorney is also an attorney for the state," the appointed attorney "is not entitled to
additional compensation." Id. art. 2.07(b). Because a county attorney is an attorney for the State,
a county attorney appointed under article 2.07(b) may not receive additional compensation for
services as an attorney pro tern. Id. art. 2.07(b), (d); see also Tex. Att'y Gen. Op. No. JM-763
(1987) at 4 (determining that article 2.07 prevents a county attorney from receiving compensation
as an appointed attorney for the State).
You also state that the district attorney specified that the county attorney should be
compensated as a "special prosecutor." Request Letter at 1. The terms "attorney pro tern" and
"special prosecutor" are sometimes used interchangeably, but the positions are fundamentally
different. Coleman v. State, 246 S.W.3d 76, 82 n.19 (Tex. Crim. App. 2008) (distinguishing an
article 2.07 attorney pro tern from a special prosecutor). While article 2.07 of the Code of Criminal
Procedure governs the appointment of an attorney pro tern, a special prosecutor participates in a
particular case at the request of the prosecuting attorney. Id. A district attorney possesses the
authority to employ and compensate assistant prosecuting attorneys, but we are not aware of any
statute that would permit the district attorney to provide additional compensation to a county
attorney for performing a duty required by article 2.02 of the Code of Criminal Procedure. See
TEX. Gov'T CODE §§ 41.102, .106 (stating a district attorney's authority to employ and fix the
compensation of assistant prosecuting attorneys). Accordingly, a county attorney is not entitled to
receive extra compensation for representing the State in a criminal matter in the county's district
court at the request of the district attorney.
Mr. Rick Dollahan - Page 3 (KP-0130)
SUMMARY
A county attorney is not entitled to receive extra
compensation for representing the State in a criminal matter in the
county's district court at the request of the district attorney.
Very truly yours,
KEN PAXTON
Attorney General of Texas
JEFFREY C. MATEER
First Assistant Attorney General
BRANTLEY STARR
Deputy First Assistant Attorney General
VIRGINIA K. HOELSCHER
Chair, Opinion Committee
WILLIAM A. HILL
Assistant Attorney General, Opinion Committee